Citation Nr: 1310129	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  10-41 275	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUE

Entitlement to death pension benefits, to include whether unreimbursed medical expense reports were timely received.



ATTORNEY FOR THE BOARD

M. Carsten, Counsel



INTRODUCTION

The Veteran served on active duty from May 1941 to November 1945.  He died in August 2006, and the appellant was his surviving spouse.  Pursuant to an August 2007 rating decision, she was found incompetent; therefore, her son was designated as legal custodian for VA purposes.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota.  The appeal was certified to the Board by the Regional Office (RO) in Waco, Texas.  

The Virtual VA eFolder has been reviewed.  



FINDING OF FACT

Information in the Virtual VA eFolder indicates that the Veteran's surviving spouse died in January 2011.  



CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this claim at this time.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 

REASONS AND BASES FOR FINDING AND CONCLUSION

Review of the Virtual VA eFolder shows that the PMC received notice in July 2011 that the Veteran's widow died in January 2011.  In February 2012, VA contacted the appellant's fiduciary, and he confirmed that his mother passed away almost one year earlier.  

Unfortunately, the appellant died during the pendency of the appeal.  As a matter of law, appellants' claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This appeal on the merits has become moot by virtue of the death of the appellant and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012).

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. § 20.1106 (2012).  

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  Such a request must be filed not later than one year after the date of the appellant's death.  See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008).  As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...."  The Secretary will be issuing regulations governing the rules and procedures for substitution upon death.  Until such regulations are issued, an eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA regional office (RO) from which the claim originated (listed on the first page of this decision).  


ORDER

The appeal is dismissed.



		
JESSICA J. WILLS
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs